Saturday, March 23, 2013

Attorney General Ken Cuccinelli has thrown a shroud of legal uncertainty over two of the General Assembly's most significant actions this year -- passage of legislation to raise money for transportation and creation of a path for reforming and expanding Virginia's Medicaid program.

Cuccinelli, the presumed Republican nominee for governor, issued an advisory opinion late Friday saying that taxes imposed on localities in Hampton Roads and Northern Virginia to pay for regional transportation initiatives are unconstitutional.

Virginia Attorney General Ken Cuccinelli

The attorney general also repeated his opinion -- first pronounced on the final day of the General Assembly session -- that a legislative commission created under the state budget does not have authority to approve expansion of Medicaid after it verifies the achievement of specific reforms to the program.

Both nonbinding opinions, issued in response to inquiries by Del. Robert G. Marshall, R-Prince William, put new pressure on Gov. Bob McDonnell just before the Monday deadline for the governor to act on legislation and the state budget.

"The governor's office has previously received input from the Office of the Attorney General relating to the same questions contained in the opinions issued today," McDonnell spokesman Jeff Caldwell said Friday.

"Every bill passed by the General Assembly is reviewed by the attorney general, and we will consider that advice as we make a final determination on necessary amendments to the legislation," Caldwell said.

Cuccinelli emphasized that the advisory opinions are based on law rather than the policy merits, but he has strongly opposed Medicaid expansion and the taxes imposed by the transportation legislation as he prepares to run for governor while remaining attorney general.

"I'm sure politics had something to do with it," said Senate Minority Leader Richard L. Saslaw, D-Fairfax, who said the state has a long precedent of imposing taxes for transportation in Northern Virginia and not the rest of the state.

The General Assembly imposed an additional tax on fuels sold in Northern Virginia in 1980 to support the region's Metro system, Saslaw said. "It has been in effect since then, and it was imposed by Richmond."

House Speaker William J. Howell, R-Stafford, who introduced the transportation bill as originally proposed by McDonnell, said Friday that he expects the governor to address the attorney general's concerns through amendments Monday.

"We'll sort it out," Howell said.

Del. S. Chris Jones, R-Suffolk, who carried the revised transportation bill that included taxes for regional initiatives in Hampton Roads and Northern Virginia, disagreed with the opinion but said he was not surprised by it.

"With all due respect to the attorney general, it's just one attorney's opinion," Jones said.

Marshall successfully challenged legislation adopted by the General Assembly in 2007 that delegated taxing powers to a regional authority in Northern Virginia to raise money for transportation. The Virginia Supreme Court voted unanimously that the law was unconstitutional, ruling that such unelected bodies cannot levy taxes.

On Medicaid, Marshall said the opinion vindicated his objection to delegating authority to the newly created Medicaid Innovation and Reform Commission to determine whether the state had achieved sufficient reforms to allow expansion of the program under the Affordable Care Act.

"Medicaid needs serious reform before we can even begin to consider expansion, and the decision about when those reforms are sufficient can and should only be determined by the General Assembly as a whole," Marshall said in a statement Friday that called on McDonnell to remove the provision.

Cuccinelli said the budget language unconstitutionally delegates the General Assembly's authority to a subset of the legislature that does not have power to act on the budget without a majority of each chamber.

But legislators in the House and Senate said they already have addressed the same concern, which Cuccinelli raised Feb. 23 in an advisory opinion to Del. Benjamin L. Cline, R-Rockbridge, even before the budget was adopted.

"I am still confident with what we did at the end of the session," said Jones, who helped revise the budget language to address the concerns raised by the opinion then.

The revision of the budget language authorized the appropriation of a "sum sufficient" to carry out the expansion, which the new commission "shall approve" if it finds that specific reforms to the state Medicaid program are achieved.

"I think he is misreading what the language says," said Sen. John Watkins, R-Powhatan. "I think the language in the budget allows the expansion of Medicaid."

"The money has already been appropriated," Watkins said. "The legislative action has already taken place."

On transportation, Cuccinelli said the bill would unconstitutionally impose a higher sales tax increase on localities in Northern Virginia and Hampton Roads than other parts of the state, while imposing additional taxes on real estate transactions and lodgings in Northern Virginia.

He said the provisions violate the Virginia Constitution's prohibition against the General Assembly imposing a local tax. Although the legislature can delegate taxing authority to localities, the attorney general said it cannot directly impose the taxes on those localities.

His opinion was endorsed by former Virginia Democratic Party Chairman Paul Goldman, a political consultant and lawyer who has argued that the tax provisions for regional transportation initiatives is unconstitutional.

"He made the right decision," Goldman said. "This is a decision based on the law, and the Democrats need to accept that. It was unconstitutional to do it the way they did it."

Sen. A. Donald McEachin, D-Henrico, a lawyer and chairman of the Senate Democratic Caucus, said he had not yet read the opinion but noted that it carries no force of law.

Saturday, March 16, 2013

You can still get busted for possession of pot in Kansas, even if you got it legally in another state, the Kansas Court of Appeals ruled Friday.

The court took up the question of whether out-of-state marijuana can be legally possessed here because it's likely to come up more often, now that 18 states and the District of Columbia have legalized it for medicinal use.

Voters in two states, Colorado and Washington, passed initiatives in November legalizing pot for recreational use as well.

The ruling comes in response to a case in which a Colorado man was acquitted of possession of marijuana because he had obtained the pot legally under a doctor's prescription, which has been allowed in Colorado since 2000.

The defendant, Troy James Cooper -- who lawfully used marijuana under a doctor's prescription in his home state -- was acquitted of a possession charge after he was arrested in Ellsworth County. Cooper was visiting family and friends and the marijuana was found during a routine traffic stop.

The trial court acquitted Cooper on the grounds that the prosecution violated his constitutional protections under the Privileges and Immunities Clause of the 14th Amendment and impermissibly infringed on his right to travel from state to state.

The state Attorney General's office took the case to the Court of Appeals as a "question reserved." The process is used as a way to get a higher court to rule on a legal question of broad statewide interest to offer guidance for future arrests and prosecutions.

It doesn't affect the outcome of the trial case, so Cooper is still off the hook as far as his charges go. Lawyers from the Attorney General's office were the only ones to file briefs in the Appeals Court case.

Based on their argument, the appellate court ruled: "The Privileges or Immunities Clause of the Fourteenth Amendment does not bar the enforcement of Kansas criminal statutes prohibiting possession of marijuana against someone traveling through or staying temporarily in this state even though that individual possesses marijuana in conformity with another state's law allowing its use and possession for medical purposes.

"In those circumstances, the right to lawfully possess the marijuana rests on state law and therefore is outside the scope of the (federal) clause."

However, the Appeals Court did caution that its ruling was narrowly applied to the 14th Amendment question.

"We … express no opinion on other constitutional rights or protections that conceivably might afford a defense to a person prosecuted under the Kansas Criminal Code for possessing marijuana legally through another state's laws permitting its use as a medication," said the opinion written by Judge G. Gordon Atcheson.

Saturday, March 9, 2013

If the Obama administration needs a plan to deal with the likely death of a key provision of the Voting Rights Act, it may be able to dust off its blueprint from 2009.

Back then, oral arguments indicated the Supreme Court was taking a skeptical view of the constitutionality of the act's Section 5, which requires certain jurisdictions with a history of racial discrimination to get federal approval of any changes to their voting laws and procedures. Oral arguments in a different case last week also strongly suggested a slim majority of the court believes now may be time to end Section 5.

Civil rights advocates in 2009 had braced for the justices to overturn the law's chief component. The vast majority of journalists, too, thought Northwest Austin Municipal Utility District No. 1 v. Holder -- known as NAMUDNO in the election law community -- would be the case that took down Section 5.

So when an 8-1 Supreme Court decision came down leaving Section 5 in place, advocates were pleasantly surprised. So, too, was the White House.

Unbeknownst to the public, President Barack Obama's administration had prepared a statement from Attorney General Eric Holder for the possibility that the court would strike down Section 5. Officials were so surpised the court didn’t toss out the section, in fact, that an alternative Holder statement -- praising the ruling as a “victory for voting rights in America” -- had to be written the day of the decision.

A written statement wasn't the only thing the administration did to prepare for a possible adverse court ruling in 2009. Greg Craig, the White House counsel at the time, recalled that his team "worked close with, kept track of, commented on, and met with an internal DOJ task force" on the Voting Rights Act issue. Other officials confirmed that there was a Voting Rights Working Group made up of both Justice Department and White House officials, and records show Holder was briefed by the group roughly a month before the Supreme Court decision.

"There were discussions about what would be the chain of events if Section 5 were overturned," said one official. "It is standard protocol when these issues come before the court for the White House counsel and the Justice Department to work together on worst-case scenarios."

At the time, the Justice Department's Civil Rights Division was essentially rudderless, with its head not yet confirmed by the Senate. Career employees were a bit more confident than the ranking political officials that Section 5 might survive, but weren’t involved in discussions about what would happen if it didn’t.

The administration's response would largely depend on whether the court found the provision unconstitutional, or found that the 1965 formula that determined which states were covered was outdated. Since Section 5 would be nearly impossible to replace if the Supreme Court found it unconstitutional, the administration had been planning to use the decision as a spark for a broader election reform proposal, two former officials said.

Likewise, Congress had two main types of legislative responses under consideration. The first was voter registration automatization, which had support among House Democrats, but didn't gain enough traction within the Senate. The second was to simply update the data upon which the Voting Rights Act was based, which would have meant that some states subjected to federal review would have been free to change election laws as they please, while others that had been free would be scrutinized.

"We should have done it then. Instead, we just went on auto-pilot," said one Senate Democratic aide, lamenting that the party may have been able to deal with the issue while controlling both houses of Congress.

Tuesday, March 5, 2013

Lawyers for Guantanamo Bay prisoners said Monday that a widespread hunger strike was under way over deteriorating conditions, but a prison spokesman denied there was any mass protest at the U.S. base in Cuba.

Attorneys for more than a dozen of the prisoners said in a letter to the prison commander, Rear Adm. John Smith, and released to the media that "all but a few men" have been on hunger strike for three weeks. They said the situation "appears to be rapidly deteriorating and reaching a potentially critical level."

The lawyers said the protest was prompted by a series of searches that began on Feb. 6 in which a number of personal items, including religious CDs, blankets and legal mail, were confiscated, and included what they felt were overly intrusive searches of their Qurans by Arabic translators that amounted to desecration.

"As their health has deteriorated, we have received reports of men coughing up blood, being hospitalized, losing consciousness, becoming weak and fatigued, and being moved to Camp V for observation," the lawyers wrote, referring to a camp that is used in part to hold men who violate prison rules.

A prison spokesman, Navy Capt. Robert Durand, said the Department of Justice would respond to the attorney’s letter, but added that there were only about six prisoners who have missed enough meals to be classified under the military's rules as being on hunger strike. He said that number has remained constant for about a year.

"There is not a mass hunger strike among the detainees," Durand said. "Some detainees have attempted to coordinate a hunger strike and have refused meal deliveries. Most detainees are not participating."

He said detainees "have chosen one routine search in early February as the rallying point for their grievances." He also said Qurans are treated with respect.

The U.S. holds about 166 men at the prison. A mass hunger strike involved many of the prisoners in the summer of 2005 but the protest dwindled after the military began strapping them down and force-feeding them a liquid nutrient mix to prevent them from starving to death.

Copyright 2013 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Saturday, March 2, 2013

New York may adjust its assault weapons ban to permit props used by filmmakers, but Gov. Cuomo says tough new gun controls will stand.

The nation's toughest gun control law hasn't taken full effect, but New York state lawmakers are considering tweaking the restrictions, especially if the gun owners happen to be from Hollywood.

Exempting filmmakers from the assault weapon ban passed in January is a measure under consideration by legislators in the state capital, Albany. Another possible change that lawmakers say might be necessary: exempting law enforcement officials from the ban.

Speaking to reporters this week, Democratic Gov. Andrew Cuomo described the possible changes as "technical corrections," not the scaling back of a law that the National Rifle Assn. has denounced as "draconian."

Cuomo says about 70% of New Yorkers support the provisions of the Secure Ammunition and Firearms Enforcement, or SAFE, Act, which was signed into law on Jan. 15. But when it comes to the TV and film industry, which pumps billions of dollars into the state, he said an allowance should be made that would reassure production companies concerned about the assault weapons ban.

New York Gov. Andrew Cuomo

"People want certainty, and there's no reason not to make a change like that, to give an industry comfort, especially when it's an industry that we want doing business in the state," said Cuomo, who added that he was not even sure this was an issue among filmmakers. That's because their weapons -- even those that aren't replicas -- are considered props because they fire blanks. (Blanks can kill, but such incidents are extremely rare, the most famous being the 1984 death of actor Jon-Erik Hexum, who fired into his own head at point-blank range.)

"So I don't believe the law covers it," Cuomo said. "But for a legal reason, if they want clarification, I think definitely we can consider it."

New York has drawn hundreds of TV and film productions with a 30% post-production tax credit on expenses incurred while filming in the state. The industry's love affair with New York is especially visible in New York City, where it's not unusual to see streets blocked to traffic and parking as film crews, stars' trailers and catering vans set up for shoots. Last month, the police warned of two consecutive days on which TV production companies would be setting off controlled explosions "with a fireball effect" in different parts of the city.

According to the Motion Picture Assn. of America, the film and TV industry is responsible for at least 91,608 direct jobs and $8.2 billion in wages in New York state. In New York City, it contributes more than $7 billion to the economy, using residential neighborhoods and studio sets to film everything from the blood-soaked "Boardwalk Empire" to the fluffy "Carrie Diaries."

There is no indication that anyone from the entertainment industry has expressed worries about the assault weapons ban. But the talk of tweaks that may or may not be necessary spotlight Albany's desire to seal all possible tears in the law as opponents vow to rip it to shreds.

About 5,000 people opposed to the law rallied in Albany on Thursday to demand that it be repealed. At least one lawmaker has proposed a bill that would do just that, though it is not expected to make much headway.

The ban's backers hope it will push lawmakers in Washington to take similar action, although the centerpiece of President Obama's initiative to reduce gun violence -- a law requiring background checks for nearly all gun purchases, is struggling in Congress. New York Mayor Michael R. Bloomberg flew to Washington this week to try to help break the logjam and said Friday he was hopeful lawmakers could be persuaded to pass what he called "sensible gun laws."

"I don't know if I'd use the word 'optimistic,'" Bloomberg said during his weekly radio interview. "Let's say hopeful."

New York was the first state to bolster its gun laws after the Dec. 14 massacre of 20 first-graders and six adults at Sandy Hook Elementary School in Newtown, Conn. In addition to broadening the definition of an assault weapon to bring more firearms under the ban, the law limits magazines to seven rounds of ammunition, down from 10; enhances monitoring of ammunition sales; expands background checks for gun purchases; and requires gun licenses to be recertified every five years.

It also increases penalties for some gun-related crimes and requires the revocation or suspension of gun licenses held by people who are deemed a danger by mental health workers. The bill would require mental health workers to report such patients to authorities.

The Obama administration came out forcefully Thursday (Feb. 28) against California's ban on same-sex marriage and, by extension, implicated similar bans in 37 other states.

In a brief to the Supreme Court, which will hear two landmark same-sex marriage cases in late March, the Justice Department argued that gay and lesbian couples should have the same right to marry as heterosexuals.

"The government seeks to vindicate the defining constitutional ideal of equal treatment under the law," Attorney General Eric Holder said. "Throughout history, we have seen the unjust consequences of decisions and policies rooted in discrimination."

The brief marks the first time the administration has weighed in on the constitutionality of any state ban on gay marriage. Although it was aimed at the voter initiative passed in California in 2008, it put the administration squarely against other such prohibitions. It urged the court to subject the state's ban to a difficult legal standard that no state prohibition is likely to meet.

In particular, the brief implicated the other states that, like California, allow domestic partnerships or civil unions: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island.

"The designation of marriage ... confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match," the Obama administration's brief states.

"Proposition 8's denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection."

Theodore Boutrous, a partner in the law firm Gibson Dunn, which is representing the two same-sex couples who filed the case initially, said the administration's arguments represent "a clear path to marriage equality across the United States."

The court filing completes President Obama's self-described evolution on gay marriage and puts his administration squarely on the side of gay rights groups and the nine states where same-sex marriage is legal.

The president opposed California's ban, Proposition 8, during his 2008 campaign but refused to endorse gay marriage. He made that endorsement during last year's campaign but said the issue should be decided by the states.

"President Obama and the solicitor general have taken another historic step forward, consistent with the great civil rights battles of our nation's history," said Human Rights Campaign President Chad Griffin, co-founder of the American Foundation for Equal Rights, which brought the challenge to Proposition 8.

Conservative groups criticized the decision to weigh in against the gay marriage ban, particularly since Obama once said it should be left to the states. Tony Perkins, president of the Family Research Council, said the president was "putting allegiance to extreme liberal social policies ahead of constitutional principle."

The high court has reserved two days in late March to consider the California ban on gay marriage and the Defense of Marriage Act, which denies federal benefits to legally married same-sex couples. Both have been declared unconstitutional by lower courts, decisions which are being challenged by gay-marriage opponents.

Proposition 8 was approved by California voters in November 2008 to block a state Supreme Court decision legalizing same-sex marriage.

What effect a court ruling striking down Proposition 8 would have on other states is not clear. The justices could rule narrowly, as a federal appeals court did, holding only that voters cannot take away a right previously enjoyed, however briefly, by Californians. But a more sweeping decision declaring marriage rights for gays and lesbians would endanger all state bans.

The Defense of Marriage Act (DOMA) passed by Congress and signed by President Clinton in 1996, has blocked legally married couples from receiving federal benefits in Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington and the District of Columbia.

The administration is leading the effort to overturn DOMA in the case of Edith Windsor, an 83-year-old New York widow who was forced to pay hundreds of thousands of dollars in estate taxes when her lesbian spouse died in 2009. Had she been married to a man, she would have faced no inheritance tax.

The new filing is more significant, however, because the administration did not have to get involved at all. Two same-sex couples are contesting Proposition 8 along with the state of California, while organizations that promoted the 2008 voter initiative are defending it.

In the Windsor case, the Justice Department's brief argues that gays and lesbians have been subjected to a long history of discrimination, and it refers specifically to the California marriage ban as an example.

On the subject of states' rights vs. the Constitution, its brief to the Supreme Court states: "Deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law."

Polls have been shifting toward approval of gay marriage. In a December USA TODAY survey, 53% of Americans said same-sex couples deserve the same marriage rights as heterosexual couples, up from 40% in 2009.

California's ban has attracted 37 "friend of the court" briefs, mostly from conservative and religious groups, including a coalition of organizations representing Episcopal, Lutheran, Methodist, Quaker, Presbyterian and Jewish faiths.